Additional Experts for the Paintiffs

In a previous article, we reported on the expert testimony submitted by one witness for the plaintiff's case against UC's proposed new Student Athlete High Performance Center. Here we report on the testimony of three more.

After extended hearings in September and early October 2007, and after an lengthy period during which Judge Miller of the Alameda County Superior Court examined the testimony that had been presented to her, she broke silence with a new order.

On December 10, she instructed attorneys for both sides to submit expert testimony that, "should address the design features of the SAHPC as depicted in the design documents in the record, including whether that evidence is sufficient to demonstrate that the SAHPC will be structurally independent from the CMS (California Memorial Stadium) by reference to the various cited provisions of the CBC (the California Building Code), and the significance of this structural independence."

In that order, Miller requested additional testimony from experts on just one specific issue - whether the proposed SAHPC had been designed to be structurally independent from the CMS.

There are four important phrases in that somewhat tedious sentence that need to be understood if the expert testimony is to be placed in context.

(As we will see, attorneys on the two sides have vociferously accused the other of violating one or more of these specific provisions. As many as possible, actually.)

First, "as depicted in the design documents in the record" means that the expert testimony should be based only on what the court calls the "administrative record" - the documents already on file with the court that cover events up to and including December 5, 2006 when the Regents certified the final project EIR and approved the design drawings for the SAHPC. This means that testimony on events after that date, and documents not already in the record, in theory, should NOT form the basis for any of the expert testimony.

Second, the judge's instruction that the testimony should address "whether the evidence (in the record) … demonstrates that the SAHPC will be structurally independent from the CMS" defines the subject she wants addressed. But this also means that testimony on other subjects should not, once again in theory, be submitted.

Third, the judge set the standard by which structural independence should be measured, telling the attorneys to provide testimony that is constructed, "by reference to the various cited provisions of the CBC".

While the CBC is normally the standard against which all building designs are assessed for code compliance, the Alquist-Priolo (A-P) seismic safety law makes no mention of the CBC, and was in fact written before the CBC itself was adopted. Thus this third phrase from the judge by itself breaks new ground; the judge said she wants the CBC to be the standard for assessing structural independence, and she wants that assessment to assist her in deciding whether UC should have treated the SAHPC as an upgrade to the CMS or not (as UC has claimed).

Fourth, the phrase "the significance of this structural independence" indicates the judge continues to keep open the question as to whether the structural independence is "significant" for her when making a judgment under A-P. This may just be judicial caution, a way of keeping all questions open until final rulings are made, but that is just speculation on this writer's part.

It will be useful to keep the four phrases listed above in mind as the plaintiff's expert testimony is described below.

In the previous article, we reported on the testimony submitted by three of UC's experts and that of one for the plaintiffs. After that article was written, the testimony of three others for the plaintiffs was posted to the court web site. When the first article was written, it seemed surprising that plaintiffs had marshaled so little testimony - and with so few issues described - but that turned out to be merely a result of the other testimony being posted a day later.

In this article we discuss the additional expert testimony from the plaintiffs. In the next article in this series, we will report on UC's objections to this testimony - and the faults the plaintiff's found in UC's expert testimony. Look for Point, Counterpoint, to be published soon.

The plaintiff's additional expert testimony came from:

Marcy Wong of Wong and Logan Architects, a former faculty member in UC's Architecture Department from 1979 to 1989,

John D Osteraas, the principal engineer and Group Vice President of Exponent Failure Analysis since 1982, and

David Orth, a recently retired Deputy Fire Chief for the City of Berkeley.

Orth argued that the SAHPC and the CMS will "function as one building" because they share access and egress points and common gates. He studied the emergency routes to and from the structures and asserted that in a panicked exit situation the egress paths would be common.

His argument is intended to create a "functional" relationship between the two buildings that has the effect of seeing them as one integrated structure.

He did not address structural independence or its significance, nor did he refer to the cited sections of the CBC, but he did submit testimony on "other" subjects. None of them in accordance with the judge's order

Osteraas' arguments are more complex.

First, he notes (as have several others) that A-P is silent on the meaning of words it contains, such as "addition", "alteration", and "structure". He argues that in the absence of such definitions, the meanings can be reliably inferred from the context of their usage in the statute itself.

Thus he wants to argue, as have plaintiff's attorneys, that the plain meaning of A-P should apply, not meanings derived from the CBC or the idea of structural independence the judge has suggested as the important criteria.

He notes that "structural independence" is not used or defined in A-P, so suggests a possible meaning of the term, saying that a building that is sufficient unto itself, one that can stand with no support from another, is structurally independent of the other.

This interpretation leads to Osteraas' key assertion: that because the SAHPC provides critical underground reinforcement to the stadium - that indeed the stadium's west wall would collapse if he SAHPC were removed - proves the two are not structurally independent.

That said, he again returns to the idea that structural independence "is an inappropriate consideration" for the court to determine whether the SAHPC is an upgrade to the CMS. He argues that relying upon structural independence alone can lead to conclusions quite contrary to common perceptions and understandings.

To illustrate, he describes several circumstances where buildings contain multiple independent structures yet look to be one building. For example, the SAHPC itself uses, he says, three independent structures with expansion joints between them (and plates that hide the gaps from public view) to allow for normal earth movement and the forces associated with normal expansion and contraction of various construction materials.

But nowhere, he says, is there in the record any indication that the three independent structures make the SAHPC into anything other than one building. To buttress his argument, he supplies a hypothetical example: suppose UC built a structure within the confines of the CMS that was structurally independent of it. He argues that seeing the new structure as anything other than an upgrade to the stadium would make no sense.

He also asserts (with no evidence cited) that upper decks and sky boxes of many stadiums across the country are supported by structural systems that are independent of those used in the original stadium - yet must still be seen as to be upgrades to the original stadium for the purposes of A-P.

Thus, he argues, structural independence cannot be, by itself, an appropriate criterion for the court to use.

He makes further arguments, not detailed here, that applying some parts of the CBC to structures in seismic zones would directly undermine the purposes of A-P, again making his original point that A-P has to be interpreted independently of other code and law - that the plain meaning of the statute, not the CBC, must be the proper basis.

Bored yet?

Marcy Wong is perhaps the most interesting of plaintiff's additional witnesses - once again an effort by plaintiffs to redirect the court's focus back to the plain-word-reading of A-P.

Readers may remember that plaintiffs objected to the court's request for expert testimony on the structural issues, perhaps because they knew that the buildings had from the outset been designed to be independent. They filed a "request for reconsideration" of the judge's order (the one quoted at the head of this article), but the request was overruled.

So the plaintiffs found themselves forced by the court to address the structural independence issue - and they attempted that - but in their testimony still labored mightily to try to bring the conversation back to their oft-repeated thesis that a plain-word-reading of A-P was the appropriate base.

Interestingly Wong, an architect, submitted extensive testimony about the meaning of the A-P statute, largely repeating arguments already heard from plaintiffs throughout the hearings. One might wonder why an architect was employed by plaintiffs to argue about the meaning of a law - until it becomes evident that her declarations are not much more than the well established arguments of plaintiff's attorney's.

That said, Wong's assertions are sensible, well written in plain English, and rather persuasive to a lay reader. That fact caused this writer some concern because the judge herself has cited court precedents to indicate that an interpretation based on the plain meaning of a statue's language is preferred to more sophisticated interpretations. Clear, logical, and sensible arguments have an appeal.

Wong began by reiterating the basics that have been reported here before, saying that even if key words in A-P are not defined, their plain word meanings are clear. She also noted absence of any criteria in A-P involving structural independence.

"Similarly," she said, "whether there is an addition to an existing … building under A-P is not limited to whether the addition shares loads or load bearing with the existing structure."

She went on to explain that, based on her architectural design experience, "structural independence between two … systems does not automatically mean that the two systems are necessarily two separate … buildings. A single building may have more than one structural system. While the (two) systems are designed to act independently of each other, the whole functions as one single building."

She cited a number of sources as to the meaning of the word "addition" (in a building sense), and found no cases where an addition either is, or is not, structurally independent from the structure it adds to. The code sections she cited about additions only look to whether there is an increase in the floor area of the building.

In saying this, she reiterated the plaintiffs long asserted contentions that the plain-word-meaning of the words in A-P should govern; Wong was going back over well-plowed ground.

Wong's other arguments as to why the SAHPC is an addition (i.e. an upgrade) to the CMS are summarized here:

  • The SAHPC is a supplement and an accessory to the CMS,
  • The physical geometry of the SAHPC is totally shaped to that of the CMS; were the building independent, there's no way the SAHPC would be designed like it is. It has clearly been designed to function as additional square footage for the CMS,
  • The users of the CMS are the same people who will use the SAHPC,
  • UC will be moving some of the existing functions of the CMS into the SAHPC - and that makes the SAHPC an extension to the floor area of the CMS, an "addition" to the CMS even in a technical sense of the word,
  • Access to and from the stadium is being modified on the portions of the CMS perimeter that abut the SAHPC, so both the CMS is being altered and the SAHPC will function as an integrated single building rather than an independent building.
  • The drawings in the record show multiple areas where the two building appear to be physically joined,
  • The two buildings share common utilities and fire water lines; they share a cooling tower; telephone and data lines for the SAHPC will be routed through the CMS.

"In summary," she testified, "it is my opinion that the issue of structural independence is not the pivotal issue in determining whether the proposal is an addition to or alteration of an existing structure under Alquist-Priolo. Rather, the common and general definitions … (should) apply to make this determination."

Now we may ask:

  • Did Wong address issues other than the structural independence of the two buildings? Yes. And forbiddenby the terms of the court order.
  • Did she assess the structural independence with reference to the CBC? No. She did not address that subject.
  • Did she assess the significance of structural independence? Yes, she gets this one: She denied its significance.

Now, A Rhetorical Question: Is it ever a good idea to dispute with a judge what she says the subject of the conversation is?

And an Editorial Answer: Maybe when you have no good answer to what the judge asks, you have to answer some other question.

Soon: Point, Counterpoint.

And From the Sidelines:

Though this is peripheral to the case and to this report, some background on the relationship between Ms Wong and the University may be of interest (quoting here a University of California press release dated 1/8/96):

The University of California and former Assistant Professor Marcy L. Wang announced today a settlement of Ms. Wang's lawsuit alleging sex and race discrimination against the University of California. The amount of the settlement was $1 million, which includes attorneys' fees.

This amount represents one of the largest out of court settlements by the University of California for a case of alleged race or sex discrimination. Of the settlement amount, $250,000 will be paid from UC funds and the remaining $750,000 will be paid by UC's outside insurance.

Ms. Wang alleged that the University of California at Berkeley denied her tenure and wrongfully terminated her. The lawsuit had been pending for three years, and for seven years prior to that, Ms. Wang had been appealing her denial of tenure through the internal grievance system within the University of California at Berkeley. Ms. Wang stated that she "feels vindicated and hopes this case will help deter any future abuses and prejudices that she feels occurred in this case."

Vice Chancellor and Provost Carol T. Christ said, "I have great respect for Ms. Wang, but the University believes that neither race nor sex was a factor in her being denied tenure." After joining the faculty in 1979, Ms. Wang was denied tenure initially in 1986 and again in 1988. Ms. Wang is now in private practice and will not return to UC Berkeley under this settlement.

The University of California and Ms. Wang both agree that this was a long and expensive legal process. Both sides agree that they are pleased that the lawsuit is finally resolved and that the matter did not have to go to a trial, which was set for June of 1996.


©Copyright 2008, BearInsider.com and Scout.com. All rights reserved.

If you haven't done so already, subscribe to The Bear Insider so you can participate in this active online Cal community and get access to the members-only content from the nation-wide Scout.com network.

Bear Insider staff writers visit the Insider discussion board regularly, and are available to discuss questions you may have about this article and Cal Athletics.


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","mobileBody":"

After extended hearings in September and early October 2007, and after an lengthy period during which Judge Miller of the Alameda County Superior Court examined the testimony that had been presented to her, she broke silence with a new order.

On December 10, she instructed attorneys for both sides to submit expert testimony that, \"should address the design features of the SAHPC as depicted in the design documents in the record, including whether that evidence is sufficient to demonstrate that the SAHPC will be structurally independent from the CMS (California Memorial Stadium) by reference to the various cited provisions of the CBC (the California Building Code), and the significance of this structural independence.\"

In that order, Miller requested additional testimony from experts on just one specific issue - whether the proposed SAHPC had been designed to be structurally independent from the CMS.

There are four important phrases in that somewhat tedious sentence that need to be understood if the expert testimony is to be placed in context.

(As we will see, attorneys on the two sides have vociferously accused the other of violating one or more of these specific provisions. As many as possible, actually.)

First, \"as depicted in the design documents in the record\" means that the expert testimony should be based only on what the court calls the \"administrative record\" - the documents already on file with the court that cover events up to and including December 5, 2006 when the Regents certified the final project EIR and approved the design drawings for the SAHPC. This means that testimony on events after that date, and documents not already in the record, in theory, should NOT form the basis for any of the expert testimony.

Second, the judge's instruction that the testimony should address \"whether the evidence (in the record) … demonstrates that the SAHPC will be structurally independent from the CMS\" defines the subject she wants addressed. But this also means that testimony on other subjects should not, once again in theory, be submitted.

Third, the judge set the standard by which structural independence should be measured, telling the attorneys to provide testimony that is constructed, \"by reference to the various cited provisions of the CBC\".

While the CBC is normally the standard against which all building designs are assessed for code compliance, the Alquist-Priolo (A-P) seismic safety law makes no mention of the CBC, and was in fact written before the CBC itself was adopted. Thus this third phrase from the judge by itself breaks new ground; the judge said she wants the CBC to be the standard for assessing structural independence, and she wants that assessment to assist her in deciding whether UC should have treated the SAHPC as an upgrade to the CMS or not (as UC has claimed).

Fourth, the phrase \"the significance of this structural independence\" indicates the judge continues to keep open the question as to whether the structural independence is \"significant\" for her when making a judgment under A-P. This may just be judicial caution, a way of keeping all questions open until final rulings are made, but that is just speculation on this writer's part.

It will be useful to keep the four phrases listed above in mind as the plaintiff's expert testimony is described below.

In the previous article, we reported on the testimony submitted by three of UC's experts and that of one for the plaintiffs. After that article was written, the testimony of three others for the plaintiffs was posted to the court web site. When the first article was written, it seemed surprising that plaintiffs had marshaled so little testimony - and with so few issues described - but that turned out to be merely a result of the other testimony being posted a day later.

In this article we discuss the additional expert testimony from the plaintiffs. In the next article in this series, we will report on UC's objections to this testimony - and the faults the plaintiff's found in UC's expert testimony. Look for Point, Counterpoint, to be published soon.

The plaintiff's additional expert testimony came from:

Marcy Wong of Wong and Logan Architects, a former faculty member in UC's Architecture Department from 1979 to 1989,

John D Osteraas, the principal engineer and Group Vice President of Exponent Failure Analysis since 1982, and

David Orth, a recently retired Deputy Fire Chief for the City of Berkeley.

Orth argued that the SAHPC and the CMS will \"function as one building\" because they share access and egress points and common gates. He studied the emergency routes to and from the structures and asserted that in a panicked exit situation the egress paths would be common.

His argument is intended to create a \"functional\" relationship between the two buildings that has the effect of seeing them as one integrated structure.

He did not address structural independence or its significance, nor did he refer to the cited sections of the CBC, but he did submit testimony on \"other\" subjects. None of them in accordance with the judge's order

Osteraas' arguments are more complex.

First, he notes (as have several others) that A-P is silent on the meaning of words it contains, such as \"addition\", \"alteration\", and \"structure\". He argues that in the absence of such definitions, the meanings can be reliably inferred from the context of their usage in the statute itself.

Thus he wants to argue, as have plaintiff's attorneys, that the plain meaning of A-P should apply, not meanings derived from the CBC or the idea of structural independence the judge has suggested as the important criteria.

He notes that \"structural independence\" is not used or defined in A-P, so suggests a possible meaning of the term, saying that a building that is sufficient unto itself, one that can stand with no support from another, is structurally independent of the other.

This interpretation leads to Osteraas' key assertion: that because the SAHPC provides critical underground reinforcement to the stadium - that indeed the stadium's west wall would collapse if he SAHPC were removed - proves the two are not structurally independent.

That said, he again returns to the idea that structural independence \"is an inappropriate consideration\" for the court to determine whether the SAHPC is an upgrade to the CMS. He argues that relying upon structural independence alone can lead to conclusions quite contrary to common perceptions and understandings.

To illustrate, he describes several circumstances where buildings contain multiple independent structures yet look to be one building. For example, the SAHPC itself uses, he says, three independent structures with expansion joints between them (and plates that hide the gaps from public view) to allow for normal earth movement and the forces associated with normal expansion and contraction of various construction materials.

But nowhere, he says, is there in the record any indication that the three independent structures make the SAHPC into anything other than one building. To buttress his argument, he supplies a hypothetical example: suppose UC built a structure within the confines of the CMS that was structurally independent of it. He argues that seeing the new structure as anything other than an upgrade to the stadium would make no sense.

He also asserts (with no evidence cited) that upper decks and sky boxes of many stadiums across the country are supported by structural systems that are independent of those used in the original stadium - yet must still be seen as to be upgrades to the original stadium for the purposes of A-P.

Thus, he argues, structural independence cannot be, by itself, an appropriate criterion for the court to use.

He makes further arguments, not detailed here, that applying some parts of the CBC to structures in seismic zones would directly undermine the purposes of A-P, again making his original point that A-P has to be interpreted independently of other code and law - that the plain meaning of the statute, not the CBC, must be the proper basis.

Bored yet?

Marcy Wong is perhaps the most interesting of plaintiff's additional witnesses - once again an effort by plaintiffs to redirect the court's focus back to the plain-word-reading of A-P.

Readers may remember that plaintiffs objected to the court's request for expert testimony on the structural issues, perhaps because they knew that the buildings had from the outset been designed to be independent. They filed a \"request for reconsideration\" of the judge's order (the one quoted at the head of this article), but the request was overruled.

So the plaintiffs found themselves forced by the court to address the structural independence issue - and they attempted that - but in their testimony still labored mightily to try to bring the conversation back to their oft-repeated thesis that a plain-word-reading of A-P was the appropriate base.

Interestingly Wong, an architect, submitted extensive testimony about the meaning of the A-P statute, largely repeating arguments already heard from plaintiffs throughout the hearings. One might wonder why an architect was employed by plaintiffs to argue about the meaning of a law - until it becomes evident that her declarations are not much more than the well established arguments of plaintiff's attorney's.

That said, Wong's assertions are sensible, well written in plain English, and rather persuasive to a lay reader. That fact caused this writer some concern because the judge herself has cited court precedents to indicate that an interpretation based on the plain meaning of a statue's language is preferred to more sophisticated interpretations. Clear, logical, and sensible arguments have an appeal.

Wong began by reiterating the basics that have been reported here before, saying that even if key words in A-P are not defined, their plain word meanings are clear. She also noted absence of any criteria in A-P involving structural independence.

\"Similarly," she said, "whether there is an addition to an existing … building under A-P is not limited to whether the addition shares loads or load bearing with the existing structure.\"

She went on to explain that, based on her architectural design experience, \"structural independence between two … systems does not automatically mean that the two systems are necessarily two separate … buildings. A single building may have more than one structural system. While the (two) systems are designed to act independently of each other, the whole functions as one single building.\"

She cited a number of sources as to the meaning of the word \"addition\" (in a building sense), and found no cases where an addition either is, or is not, structurally independent from the structure it adds to. The code sections she cited about additions only look to whether there is an increase in the floor area of the building.

In saying this, she reiterated the plaintiffs long asserted contentions that the plain-word-meaning of the words in A-P should govern; Wong was going back over well-plowed ground.

Wong's other arguments as to why the SAHPC is an addition (i.e. an upgrade) to the CMS are summarized here:

\"In summary,\" she testified, \"it is my opinion that the issue of structural independence is not the pivotal issue in determining whether the proposal is an addition to or alteration of an existing structure under Alquist-Priolo. Rather, the common and general definitions … (should) apply to make this determination.\"

Now we may ask:

Now, A Rhetorical Question: Is it ever a good idea to dispute with a judge what she says the subject of the conversation is?

And an Editorial Answer: Maybe when you have no good answer to what the judge asks, you have to answer some other question.

Soon: Point, Counterpoint.

And From the Sidelines:

Though this is peripheral to the case and to this report, some background on the relationship between Ms Wong and the University may be of interest (quoting here a University of California press release dated 1/8/96):

The University of California and former Assistant Professor Marcy L. Wang announced today a settlement of Ms. Wang's lawsuit alleging sex and race discrimination against the University of California. The amount of the settlement was $1 million, which includes attorneys' fees.

This amount represents one of the largest out of court settlements by the University of California for a case of alleged race or sex discrimination. Of the settlement amount, $250,000 will be paid from UC funds and the remaining $750,000 will be paid by UC's outside insurance.

Ms. Wang alleged that the University of California at Berkeley denied her tenure and wrongfully terminated her. The lawsuit had been pending for three years, and for seven years prior to that, Ms. Wang had been appealing her denial of tenure through the internal grievance system within the University of California at Berkeley. Ms. Wang stated that she \"feels vindicated and hopes this case will help deter any future abuses and prejudices that she feels occurred in this case.\"

Vice Chancellor and Provost Carol T. Christ said, \"I have great respect for Ms. Wang, but the University believes that neither race nor sex was a factor in her being denied tenure.\" After joining the faculty in 1979, Ms. Wang was denied tenure initially in 1986 and again in 1988. Ms. Wang is now in private practice and will not return to UC Berkeley under this settlement.

The University of California and Ms. Wang both agree that this was a long and expensive legal process. Both sides agree that they are pleased that the lawsuit is finally resolved and that the matter did not have to go to a trial, which was set for June of 1996.


©Copyright 2008, BearInsider.com and Scout.com. All rights reserved.

If you haven't done so already, subscribe to The Bear Insider so you can participate in this active online Cal community and get access to the members-only content from the nation-wide Scout.com network.

Bear Insider staff writers visit the Insider discussion board regularly, and are available to discuss questions you may have about this article and Cal Athletics.

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